MUCH ‘ADOOB’ ABOUT NOTHING
Now that the dust, or in this case the celebratory ash, has settled after the recent Constitutional Court hearing regarding the use of the Cannabis plant in South Africa, let’s have a look at what exactly has changed under current laws as they refer to Cannabis in South Africa.
1. Cannabis is still referred to as an undesirable, dependence producing substance and listed in Part III of Schedule 2 of the Drugs and Drug Trafficking Act 140 of 1992 (Drugs Act), and Schedule 7 of GN R509 of 2003 published in terms of section 22A(2) of the Medicines and Related Substances Control Act 101 of 1965 (Medicines Act).
2. The Western Cape High Court bench’s refusal to assess information and evidence which challenges the nature of the State’s classification of the plant (and which exposes not only that the plant in its natural form is harmless, but that it is also massively beneficial in terms of medicinal use, industrial use, agricultural use and ecological use) was upheld, and the scope of the hearing was reduced to the narrowest possible terms of personal use by adults in private.
In so doing, the courts have denied the possibility of truly equitable access to the massive socio-economic benefits this plant has to offer ALL of us.
The result of these long, drawn out and massively expensive proceedings is, as stated in the order itself, simply a “reading in” or clarification of interpretation of current law. This “reading-in “makes explicit (written down and stated in obvious terms) what was always implicit (not specifically stated, but what was true and known to be true nevertheless) – that the government has no say over what an adult does in the privacy of their home, unless it harms another person or a child.
This in effect means nothing has actually changed. Think about it. How many people do you know that were arrested only for smoking a joint, that they grew themselves, in the privacy of their own home? Such an arrest is, and will always be, not only an act which directly violates the Constitution (which law enforcement are not allowed to do), and one which would be virtually impossible to effect anyway.
The relief granted in the judgement was specifically for the named parties who presented argument in this case which makes it more than likely that the stay of prosecution of all in the FOGFA (DC) “queue” is nullified and that the N.P.A. will proceed with all prosecutions.
This judgement may be seen as a victory by many, especially Rastafarian communities who have been ceaselessly hounded in their communities for the simple act of smoking Cannabis; and for rural growers who have also been mercilessly persecuted for the simple act of allowing Cannabis to grow, but it is not. Rastafarians, for example, use Cannabis openly in their communities and this order has effectively made it a specific OFFENCE to smoke Cannabis in front of children – EVEN in private, even in your own home. This has much more serious implications as children can be removed from their parents under these circumstances - a horrifying possibility.
Oil makers and suppliers of cannabinoidal extracts are now much more at risk than ever as, if they are even suspected of supplying oils, it will be much easier to obtain a valid warrant for investigation, search and seizure. If successful, this will lead to charges of dealing which will carry much more severe penalties than possession, cultivation or even dealing in the herb, since the substances are more concentrated.
The singular benefit of this entire charade is that people have been made aware that they cannot, nor ever could be, prevented from engaging in cultivating, harvesting, drying, storing, and smoking Cannabis in private (their own home). As long as there are no children around... Or any other adults who don’t like Cannabis smoking... And as long as you didn’t buy it from someone. The imperative question to ask ourselves is, if this is true, how come it is still illegal to trade in Cannabis?
The Con Court has specifically adjusted the Western Cape High Court judgement to exclude any form of trading of the plant, the parts of the plant (ALL of them including seeds), and extracts of the plant, completely, even in the privacy of the home.
“8. To the extent that the order of the Western Cape Division of the High Court purported to declare as constitutionally invalid provisions of sections referred to in that order that prohibit the purchase of cannabis, that part of the order is not confirmed.”
Now, if someone is even suspected of trading, law enforcement can invade their privacy with ease to establish whether this is obvious enough to warrant charges, depending on the amount of Cannabis and whether it can be shown to be more than for personal use.
Furthermore, no specification on amount (beyond mentioning the already legislated 115 g after which dealing is presumed) has been made and the decision is left to be “reasonably” assessed by the law enforcement officer.
The focus of law enforcement has always been to punish people in order to prevent them from making money from trading (the law calls it dealing) in the flowers of Cannabis Satvia L. And less obviously, and just as illegally, in the experience of many outside of the ivory tower, for corrupt police officers to obtain their stock.
The final straw is in the following paragraph of the order:
“The above reading-in will fall away upon the coming into operation of the correction by Parliament of the constitutional defects in the statutory provisions identified in this judgment.”
So, the politicians basically have been given Carte Blanche to sell our nationalised resource (EFF 2014) to the highest bidder.
These are just a few pointers to seeing the situation clearly and what we have been explaining for some time now. The way I see it, this is no victory at all. It is a sell-out, pure and simple. Trade will be licensed by government. Any licensing structure is always massively biased towards big business, and the rest of the populace is of course, “thrown a bone” or two – this is how monopolies are created for shareholders.
The M.C.C. (S.A.H.P.R.A.)’s current and completely ridiculous license restrictions for growing and beneficiating Cannabis will see millions of South Africans missing out on the possibility of living in peace and prosperity through equitable access to this hugely beneficial plant, UNLESS we choose to come together and make an organised stand, one community at a time.
The solution is so simple! Cannabis is a plant. It is safe and effective in its herbal form, ridiculously easy to grow outdoors, and done responsibly (as with anything), easy and safe to extract into hugely beneficial natural remedies. It holds the potential for a vast plethora of eco-beneficial industries which are not yet corporate owned. All that is required for this to filter down so everyone can benefit, is to make a policy decision to remove it from the schedules based on the vast amount of available evidence!
Thank you for reading! The following is from the judgement with the "reading in" in red:
Section 22A(9)(a)(i) of the Medicines and Related Substances Control Act 101 of 1965
(9) (a) No person shall-
(i) acquire, use, possess, manufacture, or supply any Schedule 7 or Schedule 8 substance, or manufacture any specified Schedule 5 or Schedule 6 substance unless in the case of cannabis, he or she, being an adult, uses it or is in possession thereof in private for his or her personal consumption in private or, in any other case, he or she has been issued with a permit by the Director-General for such acquisition, use, possession, manufacture, or supply: Provided that the Director-General may, subject to such conditions as he or she may determine, acquire or authorise the use of any Schedule 7 or Schedule 8 substance in order to provide a medical practitioner, analyst, researcher or veterinarian therewith on the prescribed conditions for the treatment or prevention of a medical condition in a particular patient, or for the purposes of education, analysis or research;
[Subpara. (i) substituted by s. 5 of Act 59/2002]
Section 1 of the Drugs and Drug Trafficking Act 140 of 1992 (Definitions)
“deal in”, in relation to a drug, includes performing any act in connection with the transshipment, importation, cultivation, other than the cultivation of cannabis by an adult in a private place for his or her personal consumption in private, collection, manufacture, supply, prescription, administration, sale, transmission or exportation of the drug;
Section 4 of the Drugs and Drug Trafficking Act 140 of 1992
4. Use and possession of drugs.
—No person shall use or have in his possession—
(a) any dependence-producing substance; or
(b) any dangerous dependence-producing substance or any undesirable dependence-producing substance,
unless—
(i) he is a patient who has acquired or bought any such substance—
(aa) from a medical practitioner, dentist or practitioner acting in his professional capacity and in accordance with the requirements of the Medicines Act or any regulation made thereunder; or
(bb) from a pharmacist in terms of an oral instruction or a prescription in writing of such medical practitioner, dentist or practitioner, and uses that substance for medicinal purposes under the care or treatment of the said medical practitioner, dentist or practitioner;
(ii) he has acquired or bought any such substance for medicinal purposes—
(aa) from a medical practitioner, veterinarian, dentist or practitioner acting in his professional capacity and in accordance with the requirements of the Medicines Act or any regulation made thereunder;
(bb) from a pharmacist in terms of an oral instruction or a prescription in writing of such medical practitioner, veterinarian, dentist or practitioner; or
(cc) from a veterinary assistant or veterinary nurse in terms of a prescription in writing of such veterinarian, with the intent to administer that substance to a patient or animal under the care or treatment of the said medical practitioner, veterinarian, dentist or practitioner;
(iii) he is the Director-General: Welfare who has acquired or bought any such substance in accordance with the requirements of the Medicines Act or any regulation made thereunder;
[Sub-para. (iii) amended by s. 4 of Act No. 18 of 1996.]
(iv) he, she or it is a patient, medical practitioner, veterinarian, dentist, practitioner, nurse, midwife, nursing assistant, pharmacist, veterinary assistant, veterinary nurse, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter, or any other person contemplated in the Medicines Act or any regulation made thereunder, who or which has acquired, bought, imported, cultivated, collected or manufactured, or uses or is in possession of, or intends to administer, supply, sell, transmit or export any such substance in accordance with the requirements or conditions of the said Act or regulation, or any permit issued to him, her or it under the said Act or regulation;
(v) he is an employee of a pharmacist, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter who has acquired, bought, imported, cultivated, collected or manufactured, or uses or is in possession of, or intends to supply, sell, transmit or export any such substance in the course of his employment and in accordance with the requirements or conditions of the Medicines Act or any regulation made thereunder, or any permit issued to such pharmacist, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter under the said Act or regulation; or
(vi) he has otherwise come into possession of any such substance in a lawful manner.
(vii) in the case of an adult, the substance is cannabis and he or she uses it or is in possession thereof in private for his or her personal consumption in private.
Section 5 of the Drugs and Drug Trafficking Act 140 of 1992
5. Dealing in drugs.
—No person shall deal in—
(a) any dependence-producing substance; or
(b) any dangerous dependence-producing substance or any undesirable dependence-producing substance,
unless—
(i) he has acquired or bought any such substance for medicinal purposes—
(aa) from a medical practitioner, veterinarian, dentist or practitioner acting in his
professional capacity and in accordance with the requirements of the Medicines Act or any regulation made thereunder;
(bb) from a pharmacist in terms of an oral instruction or a prescription in writing of such medical practitioner, veterinarian, dentist or practitioner; or
(cc) from a veterinary assistant or veterinary nurse in terms of a prescription in writing of such veterinarian, and administers that substance to a patient or animal under the care or treatment of the said medical practitioner, veterinarian, dentist or practitioner;
(ii) he is the Director-General: Welfare who acquires, buys or sells any such substance in accordance with the requirements of the Medicines Act or any regulation made thereunder;
[Sub-para. (ii) amended by s. 4 of Act No. 18 of 1996.]
(iii) he, she or it is a medical practitioner, veterinarian, dentist, practitioner, nurse, midwife, nursing assistant, pharmacist, veterinary assistant, veterinary nurse, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter, or any other person contemplated in the Medicines Act or any regulation made thereunder, who or which prescribes, administers, acquires, buys, transships, imports, cultivates, collects, manufactures, supplies, sells, transmits or exports any such substance in accordance with the requirements or conditions of the said Act or regulation, or any permit issued to him, her or it under the said Act or regulation; or
(iv) he is an employee of a pharmacist, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter who acquires, buys, transships, imports, cultivates, collects,
manufactures, supplies, sells, transmits or exports any such substance in the course of his employment and in accordance with the requirements or conditions of the Medicines Act or any regulation made thereunder, or any permit issued to such pharmacist, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter under the said Act or regulation.
(Nothing has changed)